Trying to avoid ‘dead dry’

Agriculture and environmental experts say it's unlikely that California's system of water rights could be scrapped or changed overnight. But farm groups say the drumbeat of environmental laws over the past few decades has already profoundly affected water rights in the state.

Published on August 8, 2014 11:14AM

Tim Hearden/Capital Press
Darrell Mullins, manager of the Los Molinos Mutual Water Co., stands on a bridge overlooking Mill Creek in California's northern Sacramento Valley, which is flowing at about half its normal rate. Landowners along the creek received stop-diversion orders this spring so that enough water could remain in the creek for fish passage.

Tim Hearden/Capital Press
Los Molinos, Calif., rancher and Tehama County supervisor Burt Bundy, who also serves on the Los Molinos Mutual Water Co., board, was among landowners who received stop-diversion notices earlier this year.

Tim Hearden/Capital Press
Darrell Mullins, manager of the Los Molinos (Calif.) Mutual Water Co., stands on a bridge overlooking Mill Creek in the northern Sacramento Valley, which is flowing at about half its normal rate. Landowners along the creek received stop-diversion orders this spring so that enough water could remain in the creek for fish passage.

Ranchers along Mill Creek here were told they couldn’t divert any water while salmon and steelhead, which are protected under the Endangered Species Act, were finishing their spring run, even though the landowners held rights to the water.

Landowners in this small community in the northern Sacramento Valley had to let their fields stay dry in June, when pastures normally are most productive.

“The curtailment order in my mind lacked some due process,” said Darrell Mullins, manager of the Los Molinos Mutual Water Co. “There weren’t any hearings, there weren’t any arguments. The State Water Resources Control Board just went crazy.”

Because of curtailment, rancher Burt Bundy knows it’s only a matter of time before his pastures become “dead dry.” Bundy, a Tehama County supervisor who also sits on the Los Molinos water company board, is now only able to irrigate his pasture about once every three weeks.

His operation is small. He runs about 30 head of cattle along with raising catfish. He thinks he has enough hay to make it through the summer, but he’s spoken with other cattlemen who’ve had to sell off part of their herds.

The water company, which irrigates about 5,000 acres of farmland, is one of thousands of water right holders in the Sacramento and San Joaquin River watersheds that have faced or been threatened with water shutoffs because of California’s three-year drought. Their plight has brought to light shortcomings in the state’s century-old hierarchy of senior and junior surface water rights, sparking a debate over whether the system is ill-equipped to meet current water demands. Those demands include three major uses: agriculture, protecting the state’s 34 endangered and threatened fish populations and quenching the thirst of more than 37 million Californians.

Environmentalists complain some water rights holders are given too much leeway in the amount of water they use and the state is too lax in policing them.

“I think there’s always been a big disconnect among interest groups over water,” said Richard Frank, director of the California Environmental Law and Policy Center at the University of California-Davis.

“Some consider water in the state a private property right to obtain and consume as they see fit,” Frank said. “The second view, which is the one that’s really accurate under existing water law in California, is that water is a public resource. People have a right to use water, but it’s subject to all kinds of limits and conditions.

“A lot of this is perception,” he said. “Not everyone comes to this debate with the same set of perceptions.”

Frank and other experts in the environmental and farming communities say it’s unlikely that California’s water rights system could be scrapped entirely. Too much case law has amassed for such a move to hold up in court, they say, and the state would have to grapple with the issue of compensating landowners who’ve made investments and decisions based on their ability to access water.

“Trying to change the current water rights system would require an entire organization,” said Adam Keats, the Center for Biological Diversity’s senior counsel and urban wildlands program director. “I’m a little pessimistic that’s even possible. We’re kind of stuck with the system we’ve got.”

Incremental changes

However, farm groups say a steady procession of new environmental laws, conservation activities and biological opinions for managing protected species over the past decades have already profoundly impacted water rights in California. In essence, fish preservation efforts have shrunk the pie of available water for everything else, they argue.

“It’s been primarily (Endangered Species Act) regulations that have caused a lower amount of water to be allocated to agriculture,” said Laura Brown, director of government affairs for California Citrus Mutual. “Little bits were taken away for various projects over the years, and all those little bits have added up to a significant amount.”

During visits to Sacramento, Citrus Mutual’s lobbyists have circulated a graph that shows the availability of water for farms south of the Sacramento-San Joaquin River Delta has consistently shrunk over the years as various Endangered Species Act protections have been put in place.

Most of Citrus Mutual’s more than 2,000 growers are served by the federal Central Valley Project, whose 20 dams and 500 miles of major canals extend throughout the Central Valley. The project normally delivers about 5 million acre-feet of water each year to farms, but it maintained a zero-allocation for agriculture this spring despite some late-season storms.

As the project is a junior water rights holder, the needs of senior water rights holders, wildlife refuges and endangered species stand ahead of project contractors in line.

In May, federal officials boosted water allocations for farms and wildlife refuges whose water rights date to the 1800s. To do so, they began releasing water from Friant Dam near Fresno, which normally serves the state’s prime citrus belt in Fresno, Kings and Tulare counties. As a result of the lack of water, Citrus Mutual estimated that as many as 50,000 acres of citrus trees would be taken out of production this summer.

With their origins dating back to the Gold Rush, California recognizes both riparian rights — those held by land that directly abuts a waterway — and appropriative rights held by landowners who divert water from a river or stream and abide by a hierarchy of priority. The “first in time, first in right” system is prevalent in the arid West, while riparian rights are most common in the eastern United States.

The Water Commission Act of 1913 established today’s permit process and created the agency that later became the State Water Resources Control Board, which regulates the use of California’s surface water, the board’s website explains.

Occasionally, voters and legislators have stepped in to make changes, UC-Davis’ Frank said. Amid a severe drought in the 1920s, the state Supreme Court ruled that riparian rights holders could use as much water as they deem necessary before appropriators could use any. Outraged, voters in 1928 passed a constitutional amendment requiring all water use to be “reasonable and beneficial,” giving rise to the “reasonable use doctrine” that’s at the heart of much of today’s controversy.

Reasonable use

“Reasonable means amount and method” of diverting water, said Felicia Marcus, the state water board’s chairwoman. “We have the authority to say that no matter how senior you are, it’s not cool to waste water. It’s such a precious resource.”

However, what’s reasonable often depends on who you ask.

“The doctrine of reasonable use … is something that the water board has put a lot of interest in in taking water away from water rights holders and giving it to a stream,” California Farm Bureau Federation attorney Jack Rice said at a cattlemen’s meeting earlier this summer.

Indeed, over the past few decades, the water board has applied the reasonable-use doctrine to implement state and federal Endangered Species Act protections of fish and comply with various other requirements, including U.S. Fish and Wildlife Service biological opinions on salmon, steelhead and the delta smelt.

In 2008, for instance, the water board enacted a rule limiting growers’ ability to divert water from the Russian River in Northern California to spray their vineyards for frost protection after National Marine Fisheries Service biologists found that salmon were stranded by the resulting low water levels.

The vineyard owners sued the board, arguing it had overstepped its authority, and a trial court agreed and invalidated the rule. But the California Court of Appeals reversed the decision in June, ruling that there’s “no question” the board “has the power to prevent riparian users and early appropriators from using water in an unreasonable manner.”

In enabling the board to issue blanket decrees of what’s reasonable rather than considering water use on a case-by-case basis, the ruling creates “a major, major uncertainty on the contours of water rights,” Rice said in an interview.

“It certainly is going to cause a lot more conflict and cause a lot more challenges and wasted expense for people if it is upheld” by the state Supreme Court, he said. “I don’t believe it will set us on a very good course. People will continue to defend water rights … but it certainly doesn’t bode well. This certainly is a significant threat to the integrity of water rights.”

The Center for Biological Diversity’s Keats defends the water board, arguing it’s wholly appropriate to shut off taps to farms if necessary to save species.

“The greatest environmental catastrophe in the western United States has been the destruction of the Delta,” said Keats, who is based in San Francisco. “This is the crown jewel in terms of ecosystems, and we’re looking at an entire ecosystem on the brink of extinction. The cause of that right now specifically is the pumps of the State Water Project and Central Valley Project, and a lot of that water … goes to ag users.”

A fundamental right

But Rice counters that water rights are “a fundamental issue” for agriculture which are protected by the U.S. Constitution’s Fifth Amendment, which requires that compensation be paid for private property that’s taken for public use.

“A hundred years ago when people were hungry and jobs and food were important, they had a different perspective toward the natural world, and that’s when we established these rights,” Rice said. “Now people are thinking that we want to value other things in addition to ag or in place of it. They want to change the rules. I don’t think the Constitution allows them to change the rules like that.”

In the meantime, Bundy, the rancher, and his neighbors have been told another water curtailment is likely in October when the fall run of salmon heads upstream. Mill Creek is a key tributary of the Sacramento River.

Bundy suspects state regulators consider it politically easier to get water from farmers than from urban users.

“I think they’re trying to pick on what they think is the weakest link,” he said.